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In a tri-custody case, the Supreme Court, Suffolk County, considered whether a de facto third parent establish legal custody rights. Dawn M. v. Michael M., 47 N.Y.S.3d 898 (2017)


With the increasing number of people involved in polyamorous relationships, it is not surprising for the issue of child custody to develop where there are three individuals are in the household raising the child.  In Dawn M. v. Michael M., a husband (biological father), his wife, and another woman (biological mother)—decided to conceive and raise a child and the three parties lived together as a family for the first eighteen months of the child’s life. Some time after the husband wife divorced, the ex-wife, who was not the child’s biological mother, became concerned about her legal rights with respect to child custody.


Plaintiff Dawn M. and Defendant Michael M. married in 1994. They tried unsuccessfully to have a child. Dawn became close friends with Audria, and in 2004 Audria moved in with the couple. The three began having three-way sexual relations. As time went on, Audria, Dawn, and Michael began to consider themselves a “family” and decided to have a child together. In 2007 the child was born. Dawn and Audria shared maternal responsibilities. The child called both Dawn and Audria “mommy” and considered both women as his mother.

When the child was about 18 months old, Dawn filed for divorced from Michael. Dawn, Audria, and the child moved out. Audria and Michael were awarded joint custody with Audria having primary residential custody and Michael three Saturday overnights per month.

Over time, even though Dawn and Audria still lived together,  Dawn became concerned that her remaining in J.M.’s life depended on Michael’s and Audria’s continued consent. Audria fully supported Dawn having legal rights, but Michael objected. Michael testified that once he and Dawn divorced, he no longer considered Dawn to be a parent to the child. Dawn sued Michael to establish legal visitation and custody rights for one weekend per month.


Under New York family law, a parent may establish custody rights based solely on the child’s best interests. Other New York custody decisions confirm that the child’s best interests always control, including when someone who is not the child’s biological or adoptive parent seeks custody rights.

Courts recognize that joint custody between two parents fosters a healthy psychological environment for the child. Children are entitled to the love and support of both parents, and joint custody promotes two parents sharing parenting responsibilities and decisions, unless their relationship is so embittered that it is impossible.

Here, the evidence shows that Dawn has always acted as the child’s de facto parent.  The court found that Dawn’s love for the child was apparent from her actions, testimony and demeanor on the stand. On the other hand, Michael’s testimony that he never referred to Dawn as “mommy” in front of the child was not credible. The court found that when all four lived together, Dawn, Audria, and Michael taught the child that he had two mothers.

When interviewed, the child indicated that he refers to both women as “mommy.” I was clear that he would be devastated if he could not see Dawn. He loves his father and both his mothers. Dawn and Audria have always shared responsibilities for J.M. and made parenting decisions together, and their relationship is not at all embittered. In addition, Dawn argued that Michael should be estopped from opposing her petition because he helped create and foster this situation by voluntarily agreeing, before the child was conceived, to raise him with three parents.

Pursuant to Dom. Rel. Law § 70, a parent may apply to the court for custody based solely upon what is for the best interest of the child, and what will promote his welfare and happiness. Dom. Rel. Law § 240 requires that in any proceeding for divorce, the court “shall enter a custody order having regard to the circumstances of the case and of the respective parties and to the best interests of the child….”

Based on the evidence adduced at trial, including the demeanor and credibility of all three witnesses, the in camera interview with the child, and the factual findings made by this court, it is clear that the best interests of the child would  be served by granting  Dawn’s application for shared legal custody with defendant. The court accordingly grants shared tri-custody and visitation with Dawn every Wednesday evening, one week-long school recess, and two weeks in the summer.




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